NETHERLANDS Law and Practice Contributed by: Nathalie Idsinga and Mignon de Wilde, Arcagna
property. To plan for potential incapacity, an individual may execute a living will. A living will typically grants specific powers of attorney and may include medi - cal directives (such as a “do not resuscitate” order). A durable power of attorney, granted prior to inca - pacity, remains valid. Foreign powers of attorney are generally recognised. For certain legal acts, such as mortgaging real estate in the Netherlands, a notarial power of attorney is required. 8.2 Appointment of a Guardian In the case of loss of capacity, a person can be put under legal restraint by a court. A court order is also required if an adult is to be put under fiduciary admin - istration. The parents or guardian of a minor (a child under 18) need a court’s authorisation for certain legal acts that significantly affect the minor’s property, such as donations on behalf of the minor or the disposition of assets other than money. 8.3 Planning for Incapacity Often, a power of attorney (for example in the form of a living will) is granted. The power of attorney can be given to a person with immediate effect or it can stipulate that it will enter into effect only after a doctor has declared a person mentally incapacitated. 8.4 Elder Law In the event of loss of capacity, an individual may be placed under legal restraint, with a legal guardian appointed to represent them. To prepare for potential incapacity, a person may also execute a living will. If an adult is unable to manage their own property, a fiduciary administrator may be appointed to adminis - ter their assets. 9. Planning for Non-Traditional Families 9.1 Children Under Dutch law, the key factor in determining a child’s legal status is the existence of “legal family ties” between the child and the deceased. Legal family ties between a child and their mother are established by birth or adoption. When a child’s mother is mar -
ried or in a registered civil partnership, her husband is considered the legal father of the child. In addition, the father can claim legal ties via formal recognition of the child, judicial establishment of paternity or adoption. If a child has legal family ties with a parent, regardless of how these ties were established, the child is con - sidered an intestate heir and is entitled to a statutory share (see 2.3 Forced Heirship Laws ). 9.2 Same-Sex Marriage In the Netherlands, same-sex couples can marry or enter into a registered civil partnership. They are treated equally to heterosexual couples in relation to property, gifts and inheritances and tax law. 9.3 Cohabitation and Unmarried Couples An unmarried couple that has not entered into a registered partnership may still be treated as ‘fis - cal partners’ in the Netherlands. As a general rule, the persons need to have entered into a notarial co- habitation agreement and officially live at the same address. Several tax laws, however, give a broader definition of fiscal partners. For personal income tax purposes, for example, persons who officially live at the same address and have a child together qualify as partners for a pension arrangement or own their primary residence together, also qualify as partners. For inheritance and gift tax purposes, for example, the definition of fiscal partners is broadened to include adults who officially live on the same address and have been doing so for at least five years, as long as they are not each other’s descendants. If persons qualify as fiscal partners, they are entitled to the same tax benefits as married couples or couples in a regis - tered partnership.
10. Charitable Planning 10.1 Charitable Giving
Gifts and inheritances from a Dutch taxpayer to a registered charity ( algemeen nut beogende instel- ling or ANBI) are exempt from gift and inheritance tax. Additionally, gifts to ANBIs are deductible for personal income tax purposes. Such deductions are only allowed for the portion of the gift that exceeds 1% and does not exceed 10% of the donor’s total income. Periodical gifts are deductible regardless of
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